Some 216 years after the Fourth Amendment was written into the Constitution, a new issue over its meaning is now before the Supreme Court. In criminal law, few Amendments have as much nuance in their acquired meaning, with refinement upon refinement in arrest, search and seizure powers coming often, seemingly with each new Term of the Court. Frequently, a new twist involves what police may do when they stop a car along the road. The latest Fourth Amendment question, also growing out of a roadside stop, is whether a violation of state law governing police arrests finds a remedy in the national Constitution. That is the issue in Virginia v. Moore (06-1082), granted Monday with oral argument likely in January or February. (Click the following links to read the petition, brief in opposition and reply.)

The state of Virginia’s appeal has drawn the support of 13 other states and Puerto Rico, arguing that the Virginia Supreme Court ruling converting a violation of state arrest law into a Fourth Amendment violation intrudes upon states’ rights. “The melding of state-law regulations into federal constitutional rights,” those other states’ brief argued, “undermines the benefits of both: On the one hand, it mandates a uniform remedy for a broad spectrum of state statutory violations; on the other, it allows state laws to create variations in federal constitutional protections.”

What attracted the Justices’ attention to the case, aside from their abiding fascination with Fourth Amendment intricacy, very likely was the fact that the specific question has divided the federal and state courts.

According to papers filed in the Brown case, a minority of courts that have addressed the issue, including Virginia’s highest court, have ruled that when state arrest law is violated, the federal Constitution provides a remedy in the suppression of any evidence that resulted from the arrest and a related search. A majority of courts, by contrast, have concluded that, if an officer has had probable cause to make an arrest, that satisfies the Fourth Amendment, even if some provision of state law was violated in the process.


The case began on Feb. 20, 2003, when two detectives in Portsmouth, Va., got a radio message alerting them that a particular motorst was operating a car while his driver’s license was suspended. The officers stopped David Lee Moore, believing that he was violating a state law making it a misdemeanor to drive on a suspended permit. They arrested Moore, and, in a subsequent search while he was still in custody, found 16 grams of crack cocaine and $516 in cash in his pants pocket.

Charged with possession of cocaine with intent to distribute, Moore sought to block the use of the drug evidence, contending the search violated his Fourth Amendment rights (among other claims). The motion was denied, Moore was convicted, and then sentenced to 18 years, with jailing suspended. He appealed his conviction, and higher Virginia courts ultimately ruled in his favor.

The basis of the Virginia Supreme Court ruling was that, under state law, a police officer detaining an individual for a misdemeanor can only issue a summons and then must release the person. to appear later to answer the summons. Because, in Moore’s case, the police arrested him instead of simply issuing a summons and letting him go, the arrest was invalid under state law, the search that followed arrest was invalid, and the evidence obtained in the search had to be suppressed, the state Supreme Court found.

The state’s petition argued: “Because the Fourth Amendment…imposes one standard for arrests and state law frequently provides for additional strictures, it is not unusual for state and federal courts to be confronted with the situation where a police officer has probable cause to arrest as required by the Fourth Amendment, but violates a state-law governing arrests.”

It contended that five federal courts of appeals and four state supreme courts have ruled in conflict with the Virginia Supreme Court and the decisions of two federal appeals courts. The conflict is acute in Virginia and California, according to the petition, because state high courts disagree with their area’s federal appeals court.

In Moore’s case, according to the state, if the Virginia law governing summons after a misdemeanor stop is taking out of the picture, it is clear that his arrest — and the follow-up search — did not violate the Fourth Amendment.

The supporting states added that it is a state’s responsibility to regulate how arrests are made and, if there is a violation, to define their own remedies. The Court has never expressly held that, those states say, so it should do so now.

(DISCLOSURE: The Akin Gump firm represents David Lee Moore in the case.)

Posted in Virginia v. Moore, Uncategorized